A Hybrid Judiciary in a Hybrid Regime: A Case Study on Hungary

Hybrid regimes occupy a middle ground between democracies and autocracies. We argue that the same applies to their rule of law. Just as hybrid regimes maintain the façade of democracy, they sustain judiciaries that seemingly mirror those of a functioning Rechtsstaat. Due to constitutional and international demands for judicial independence, informal means are used to exercise control over judges, making a focus on legal characteristics insufficient to detect their actual functioning. Through an in-depth case study of Hungary’s judiciary after 2010, we show that ‘constitutional tinkering’ and informal clientelistic networks, used to control the executive and legislative branches, were also applied to the judiciary. Still, they remain underdeveloped because of the domestic and external restraints of judicial independence. Since reliable hard data is not available, we build our paper on interviews with Hungarian judges conducted in 2022. Based on these, we test the validity of existing theories and leverage thick descriptions to explain the means of control over judges. We propose that the influence over the judiciary is divided among three institutions: the Supreme Court, the National Judicial Office, and the Constitutional Court. These were gradually packed but remained formally independent. The institutions and their leaders are incentivized to compete for resources and influence, which they receive in exchange for keeping the judiciary at bay. The system is designed to motivate these institutions to check each other at the expense of a de facto independent judiciary. Institutions are constantly redesigned based on their efficacy and reliability and due to external constraints (mainly the EU and the ECHR), resulting in an ebb and flow of their power and influence. By doing so, hybrid regimes can maintain the appearance of the rule of law by delegating and incentivizing control over the judiciary. They thereby escape measurement, maintain plausible deniability, and evade international pressure.